Frederick commissioner ignores ethics advice

Delauter’s company pursuing construction work in the county

County Commissioner Kirby Delauter (R) is paying no mind to a Frederick County Ethics Commission advisory ruling and pursuing construction work in the county.

Last year, the ethics commission ruled Delauter, who operates the construction firm of W. F. Delauter & Son, Inc., could not take on construction jobs in which county inspectors would have to examine his work. The ruling was based on the concept that those inspectors ultimately work for Delauter and there could be a perceived conflict of interest.

That March 21, 2011, opinion, the third on Delauter’s business by the ethics commission, prompted him to send a response to county attorney Linda Thall on March 30, 2011.

In the letter, written by Delauter’s attorney Rand Weinberg, he states because of the “extreme procedural irregularities” in the process, Delauter would not abide by the opinion of the ethics commission.

In an email this week, Delauter wrote the third opinion that barred his company from taking on projects where county inspectors would review his work was discussed and voted on by the ethics commission “behind closed doors without consulting my counsel or myself.”

Weinberg noted in his March 30, 2011, letter that his client was denied “due process of law,” which is applicable, he said, to any governmental proceeding.

Instead, Delauter is following the second opinion by the ethics commission, issued in January 2011, which allows him to pursue contracting work in the county, but not bid on county projects. The second opinion that allowed Delauter to work on county-inspected jobs came after Delauter appealed the first opinion, which said he could not. The third opinion reverted back to the commission’s first position.

“I abstain from any issues that are related to my company in county discussions. We have not done any county-funded [capital budget] work since I was elected,” Delauter wrote in the email.

W.F. Delauter currently is the general contractor on two water- and sewer-related jobs in the county that are part of a pilot program where developers can hire their own inspectors, but also require oversight by county inspectors. The pilot program was approved by county commissioners in May 2011. Delauter’s business partner, Carl Athey, applied for a permit for a construction project outside of the pilot program that will be inspected by county staff before June 3.

The opinion offered by the ethics commission is not a binding order and reflects the commission’s interpretation of the county’s ethics ordinance, according to the response from Thall to Weinberg’s letter last year.

“… The ethics commission has only issued guidance to your client, Commissioner Delauter, on how to remain in compliance with the dictates of the ethics ordinance,” Thall wrote on April 4, 2011.

Because no complaint had been filed against Delauter, Thall disputed Weinberg and Delauter’s contention he was denied “due process” on the third opinion issued by the commission.

“Advisory opinions do not order an official or employee to take a specific action or refrain from a particular course of conduct, although they may provide some indication of how the ethics commission might interpret the ethics ordinance if a complaint is filed,” Thall wrote.

Former county commissioner John L. Thompson Jr., who requested interpretations of the ethics commission several times during his three terms in office and helped rewrite the ordinance, said unless Delauter received word from the commission to “cease-and-desist,” he can do what he wants regarding construction jobs in the county.

“The fact that the commission issues an advisory ruling, and you violate it, the next step after that, as far as the commission is concerned, is to issue a cease-and-desist order,” Thompson said. “That is usually brought up by a complaint, but there is nothing that says they [the commission] cannot act on their own.“

If the subject of an advisory opinion ignores such an order, there are several possibilities, including requesting the county attorney to take the issue to court to ask the judge to issue a cease-and-desist order, Thompson said.

“But that is a political decision, and a county attorney’s office won’t go to court unless the county commissioners say yes because county attorneys report to the Board of County Commissioners,” he said.

Another possibility, according to Thompson, also an attorney, is anyone can file a criminal charge of violations of the ethics ordinance with the state’s attorney’s office if those violations are “willful and deliberate.”

Authorities are reluctant to go “gung-ho” with those types of cases, Thompson said, because people often use ethics charges for political purposes, and the state’s attorney’s office has limited resources to pursue such matters.

"There are no county dollars involved in this matter," Commissioners' President Blaine R. Young (R) said about the controversial ethics commission opinion. "The ordinance is so ambiguous that a whole realm of people could be barred from running for office in the county."

The commissioners recently added three members to the ethics commission, adding two permanent slots to the three-member body, and replacing a member who is leaving June 30.